The UN General Assembly is going to receive a new draft treaty on crimes against humanity. Unfortunately, the new draft uses an outdated definition of gender that would give some governments an excuse to ignore persecution of women and LGBTIQ people. This new treaty is a historic opportunity to address egregious crimes and enhance state efforts to prevent and punish gender-based crimes. However, a text that fails to reflect the current human rights definition of gender could sideline women; lesbian, gay, bisexual, transgender and intersex (LGBTI) persons; and other marginalized groups. It could also result in even greater impunity for gender-based crimes amounting to crimes against humanity.
Civil society has until December 1, 2018 to give input on the draft crimes against humanity treaty. That’s one week away. Please join us in signing this letter calling for the definition of gender to reflect the last twenty years of international law. You can find the open letter below, and you can sign the open letter here.
To add your organization's name to the letter, please sign by Thursday, Nov. 29, 2018.
November 30, 2018
Mr. António Guterres
Secretary-General of the United Nations
New York, NY 10017
United States of America
Mr. Huw Llewellyn
Director of the UN Codification Division
United Nations Headquarters
Room No. DC2-0570
New York, NY 10017
Via email: firstname.lastname@example.org
Re: “Gender” in the Draft Crimes Against Humanity Convention
Dear International Law Commission Members,
We write to you regarding the draft crimes against humanity (CAH) convention pending with the International Law Commission. The Commission has called for states and civil society to provide submissions with their final commentaries on the draft convention by 1 December 2018. We urge the Commission to remove the definition of gender from article 3(3) of the draft crimes against humanity convention, or in the alternative, replace it with the definition of gender put forth by the Office of the Prosecutor for the International Criminal Court (ICC).
Strong language on crimes against humanity that complies with existing human rights law would be an invaluable tool for confronting impunity and enhancing state efforts to prevent and punish gender-based crimes. However, a text that fails to reflect the current human rights definition of gender could sideline women; lesbian, gay, bisexual, transgender and intersex (LGBTI) persons; and other marginalized groups. It could also result in even greater impunity for gender-based crimes amounting to crimes against humanity.
While international human rights precedents recognizing gender as a social construct are abundant, there is little jurisprudence related to gender under international criminal law. This significantly raises the importance of gender in the proposed text. The draft produced by the Commission and handed to the UN General Assembly 6th Committee next year will significantly contribute to the legal understanding of gender and marginalized groups. For this reason, we underscore the importance of omitting or updating the proposed definition of gender in article 3(3) of the draft.
A primary concern identified in expert civil society consultations is that the draft CAH treaty adopts the definition of gender from the Rome Statute. It states, “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” Unfortunately, the ICC has never successfully prosecuted a charge of gender-based persecution, arguably because its definition is opaque.
Over the last two decades, numerous regional and UN human rights mechanisms including treaty bodies, experts and jurists have adopted language that recognizes the social construction of gender. Notably, the Rome Statute’s definition has never been adopted again in any other human rights document or mechanism. The ICC’s own Office of the Prosecutor (OTP), in turn, has also adopted the understanding of gender under international law. Its 2014 publication, “Policy Paper on Sexual and Gender-Based Crimes,” clarifies the definition of “gender” under the Rome Statute: “‘[g]ender’, in accordance with article 7(3) of the Rome Statute … refers to males and females, within the context of society. This definition acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” Accordingly, the policy paper distinguishes “gender” from the term “sex” which refers to “the biological and physiological characteristics that define men and women.” OTP’s definition provides clarity and reflects the years of codification of the understanding of gender as a social construct. It is the only definition of gender under international criminal law to arise since the Rome Statute.
Finally, other than “gender”, no other protected class under persecution is defined in the draft convention. Thus, including a definition may imply that persecution on the basis of gender is secondary or qualified and not equivalent to other persecutory categories.
Globally, sexual and gender-based crimes remain the least-condemned crimes in armed conflict. According to UN Women, “narrow definitions of sexual violence codify gender inequalities preventing access to justice to many survivors and making the implementation of international conventions and frameworks difficult.” The proposed treaty presents a unique opportunity to reduce obstacles to sexual and gender-based prosecution. A text that reflects the current status of human rights law would help to ensure that the CAH convention does not reinforce the sidelining of women, LGBTI persons and other marginalized victims. It could assist States in their efforts to prevent, punish and protect against gender-based crimes, sending the message that such violence is unacceptable, that it will not occur with impunity, and that all survivors’ rights will be upheld.
We therefore recommend to the International Law Commission that the definition of gender either be removed or revised in the draft crimes against humanity convention using the definition of gender put forth by the Office of the Prosecutor for the International Criminal Court.
- MADRE, New York, US
- OutRight Action International, New York, US
- The Human Rights and Gender Justice (HRGJ) Clinic, City University of New York (CUNY) School of Law, New York, US
- The Center for Socio-Legal Research, at the Universidad de Los Andes School of Law, Bogotá, Colombia
 The Office of the Prosecutor of the ICC, Policy Paper on Sexual and Gender-based Crimes (2014), https://www.icc-cpi.int/iccdocs/otp/otp-Policy-Paper-on-Sexual-and-Gende....
 See for example, UN Secretary-General, Protection against violence and discrimination based on sexual orientation and gender identity UN Doc. A/73/152 (12 July 2018); the Inter-American Court of Human Advisory Opinion OC-24/17 (November 24, 2017) par. 32; CAT Committee, Ninth annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. CAT/C/57/4 (22 March 2016); CEDAW, General Recommendation 33, UN Doc. CEDAW/GC/33 (3 August 2015); CAT General Comment 3, UN Doc. CAT/C/GC/3 (19 November 2012); CEDAW, General Recommendation 28, UN Doc. CEDAW/GC/28 (16 December 2010); General Comment 2, UN Doc. CAT/C/GC/2 (24 January 2008); ICESCR, General Comment 16, UN Doc. E/C.12/2005/4 (11 August 2005); Secretary-General, Question of torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/56/156 (3 July 2001); ICCPR, General Comment 28, UN Doc. CCPR/C/21/Rev.1/Add.10, (29 March 2000); Report of the Secretary-General: Implementation of the Outcome of the Fourth World Conference on Women (Beijing Platform for Action) (3 September 1996); CEDAW, General Recommendation 19, UN Doc. A/47/38 (1992).
 The Office of the Prosecutor of the ICC, Policy Paper on Sexual and Gender-based Crimes, 3 (2014), https://www.icc-cpi.int/iccdocs/otp/otp-Policy-Paper-on-Sexual-and-Gende....
 Id. citing the World Health Organization (WHO), What do we mean by “sex” and “gender”?.
 UN Women & UN Team of Experts Rule of Law/Sexual Violence in Conflict, UNDP, Accountability for Sexual Violence in Conflict: Identifying gaps in theory and practice of national jurisdictions in the Arab region, 4 (2018).